Since the National Federation of the Blind sued Target Corp. for the inaccessibility of its Web site, many people have taken sides, vilifying Target and/or lionizing NFB in turn. I think it’s too early for that, if it’s necessary at all. In terms of US law, this was a suit that needed to happen, because the case law on Web accessibility is so far pretty thin. The most important thing to take away from this news is that the same case could be brought against dozens of comparable e-commerce sites, and all over problems that stop many users dead in their tracks, and yet could be fixed without affecting their visual design or functionality.

I’m hesitant to paint Target as the solitary enemy of users with disabilities. Let’s be clear: The accessibility of Target’s site is terrible. But in a short review I did of big-box store sites this morning, they’re not the worst around. In fact, they’re pretty much the middle of the range.

Take Costco.com. Please. From an accessibility standpoint, if Target is bad, Costco is a godless abomination. Never mind the distinct lack of alt text (which, by the way, is not the alpha and omega of Web accessibility): Costco’s homepage contains over a hundred subcategories in hidden drop-down boxes. But they’re not links. Noooooo. They’re table cells, with mouse events that fire JavaScript functions to load the relevant pages. Nice. The Costco site is not only inaccessible, its code is so poorly designed that its bloated size alone contributes to major usability problems for everyone.

Costco is only one example of many I found. But I’m picking on them in particular because their brick-and-mortar operation is refreshingly progressive. The company prides itself on a “workplace focused on ethics and obeying the law”, and has enormous signs at their front door stating that they strive to accommodate the needs of their customers in accordance with the Americans with Disabilities Act.

So, to what do we attribute the utter inaccessibility of many e-commerce sites: ignorance, miscommunication, or malice? I’ve seen all three in practice. Often, it doesn’t take the threat of a lawsuit to get site owners to come around; they merely need to understand the problems, and what they can do to solve them, in order of impact on the user.

But I’ve also seen cases where it’s a legal game of chicken: some companies refuse to comply with a legal mandate that they feel doesn’t clearly apply to them. They’re gambling that the cost of being found guilty of non-compliance is lower than that of conforming to a standard that may not apply to them. This strategy falls apart like a house of cards as soon as one of them is found liable. And it’s a tactic I find particularly odious when they’re consciously acting to keep users with disabilities out.

The fact is that the Web has afforded many people with disabilities new-found potential to buy and sell things, work, manage finances, find community, gather news, and access government services — all things able-bodied people take for granted. When people with disabilities received legal protection, it wasn’t given out of pity. It was given to protect their right to participate equally in society. Web designers and developers can enable that equal participation with every site they design, using modern coding principles. Or they can hide in a castle or a cave, clutching their legacy code, certain that those evil, litigious disabled people are out to get them.

My last good New Years resolution came to me at the Y2K party. (I quit smoking, cold turkey.) This time, I’m ridding myself of another addiction, one that’s cost me thousands of dollars in my lifetime, and has grown more hazardous each year.

I’m going to stop buying new CDs.

It used to be that CDs were a known quantity: you put it in the player, press play, it works. A compact disc was, like a vinyl record, an artifact of a recording, something you knew you’d be able to play on any device that was physically compatible with it. This is key to the success of any media format. Nobody wants to buy an album (or a movie, or a book) knowing that its functionality has been crippled, particularly when the precise limitations aren’t disclosed beforehand. But somehow, according to the majors, our reluctance to play along with their dirty tricks is our fault, and reason to jack up prices and lock down content.

These days, it is clear that the record cartel is playing fast and loose with the rules, and not much caring about the consequences for the consumer. On some recent albums, labels are purposely breaking the redbook CD standard that guarantees that kind of compatibility, as another ill-conceived anti-piracy move. And that turns out to be the least of the consumer’s problems: we know about Sony’s XCP fiasco, which showed us that infecting our computers is on the table, from the cartel’s perspective. Of course, Sony isn’t alone here, as other labels and content protection companies look for various ways to hinder users from accessing the music they’ve purchased.

A CD is no longer the artifact that it once was: its own compatibility and longevity is in doubt, and those two properties comprise most of the value of purchasing a given recording. The record cartel is guilty of turning music into copy-protected software, complete with end-user licenses and spyware, and charging us more money for less freedom.

My resolution for 2006 is to stop buying new CDs, with very limited exceptions. I will limit my music consumption to what is available legally online. Any CDs I do purchase will be direct from the artist, from independent labels, or used, and will be ripped to MP3 and immediately archived.

I will get most of my music from sources I already know and use: namely, various Creative Commons netlabels like Magnatune, Comfort Stand and Epsilonlab; the music RSS feed at archive.org; and subscription sites like eMusic and Wippit that offer MP3 files. If the urge to buy a mass-market CD should strike (as it did about four times in 2005), I’ll buy it from the iTunes Music Store (this being a viable option since I have an iPod and copies of iTunes everywhere). If the record cartel gets its way and pushes the album price above $9.99, I’ll stop buying those, too.

Something’s gotta give in this marketplace. I will not continue to pay increasing sums for the CDs I buy, particularly when it seems that labels are using more of that money to take capabilities away from me than they do, you know, to pay artists. The labels, even after their shady accounting and the virtual indentured servitude of their artists, are on life support. It’s time to pull the plug.

I see here, from the beaches of Ixtapa, that Yahoo has announced a music subscription service that comes out to around half the cost of the competing Napster and Rhapsody services. I don’t have many details other than the stories I managed to download, but it looks like something that I’d be willing to sign up for, at $5 or $7 a month.

There’s something that sort of confuses me when it comes to the debate over music subscription versus something like the iTunes Music Store. Advocates of the iTunes approach tell you that it’s all well and good that you can listen to all of this music on demand, but you’ll never own it like you do with music you’ve bought from iTunes.

Really? How’s that? I have about a thousand albums that I can for all intents and purposes say that I “own”. They were CDs that I purchased in stores and MP3s I bought legally from Emusic. I have no limitations to how I use these tracks for my own purposes, subject to existing legal limits, which I disagree with, but obey.

On the other hand, I have three tracks that I’ve paid for via the iTunes Music Store. One of them was on the laptop that was stolen, and I won’t get that one back. If I had the CD, I’d have been able to re-rip it, but as it is, that’s a dollar down the hole. Another track is associated with an email account I no longer control, with a password I can’t find, so that one’s as good as dead to me. And without burning the tracks to CD (at a lower quality than I would have had on a physical disc) and re-ripping them as MP3, none of them are of any use to me outside of Apple’s iTunes/iPod walled garden. In fact, I found iTunes changed my default ripping behavior from MP3 to AAC without my knowledge, presumably during my upgrade to Tiger, only after I’d ripped a dozen or so CDs for my vacation. (Luckily, BetaPlayer on Windows Mobile understands AAC. Free software kicks ass.)

Meanwhile, for these tracks I’ve paid for, Apple has changed the terms under which I can use them by altering its FairPlay DRM. To state an extreme case, Apple could shut down the entire iTunes project tomorrow, or even disable the software — something nobody can do to my CDs or MP3s, try as they might. And the day will come when that software is ancient, and support could be dropped. It may be five or ten years from now, but when it happens, those with hundreds or thousands of locked-down music tracks will be feeling pretty silly for not having made a CD copy.

How is this considered ownership? Both of these systems represent the same offer — temporary access to DRMed music files — on different terms (individual tracks on long-term lease versus entire catalogues on short-term rental). Music on demand is worth paying a fee. The sale of music in easily-obsoleted digital formats is not.

I’ll take Yahoo up on its offer and rent my music, rather than buying from iTunes. But when I find something I like, I’ll hop over to the record store and buy it on CD. It’ll save me money to be able to hear entire albums before I buy them (Blu Cantrell: what was I thinking?), and I’ll have ultimate control over what I can do with the music, unless they manage to succeed in making the DRM CD. (Which I doubt they will, unless they can fool us all into DVD-Audio.)

But at the same time, I’d pay much more for a compulsory licensing scheme, where I’d have unlimited download access to an entire catalog in a robust format. And I’d pay even more than that to be able to turn around and podcast the items that I want, rather than fooling around with the licensing nightmare we have now.

I’ve even considered submitting a show to Adam Curry’s Sirius show called The Podcast I Can’t Do, featuring the music I have in my collection. I’m not able to distribute a show like that because of the cost involved in doing it all legally, but since Sirius picks up the tab on its broadcast network, I’d be free to do what I like. I wonder what Podshow would think about that.

I’m not scared or disappointed by this experiment. CC has to have reach beyond Web geeks in order to be effective. Anyone who has read Wired over the last two years at least knows something about CC, but that’s only a half million people. Not a lot, in the grand scheme. I’ve talked myself blue in the face to just about everyone I know about CC, but one person I’m never going to reach is the non-techie conspicuous consumer. I know that they would probably understand and agree with the CC model if someone they identified with would explain it to them. That’s a conversation that CC could be having. But they need a broader set of advocates, and this gives them that.
The burden in this form of communication is borne by two actors: in this case, the BzzAgents and Creative Commons. Anyone who wants to be a BzzAgent and still have friends has to have a story that’s genuine. If their story isn’t honest and relevant, the audience will know something is up, and that impacts the agent’s personal reputation. Anyone can trade away their whuffie for a little cash, but they’ll learn it’s way easier to spend than it is to earn. When’s the last time you invited an Amway salesman to your house after they tried to pitch laundry detergent or financial independence to you?

It will also be up to CC to explain itself well to the non-technical. Let’s not mince words here: the stereotypical CC advocate (myself included) is some combination of a lawyer, a geek, an intellectual property activist, and a performer. We’re not going to reach everybody. We need constant pressure from all sorts of people in order to achieve the cultural breakthrough that we want. What is most important is that our new advocates are well-enough informed to convey the urgency of the situation. It will come out soft and irrelevant if, to paraphrase Mark Resch, they’re just listening to the free speech to get the free beer.

As for the people who actually engage in this form of persuasion, I have to think that a lot of them do it because they believe they’re beating the system. And maybe they have: at least they have marketers talking with them, and are getting some form of compensation for helping them. It’s not like HBO is giving out mugs for the water-cooler chat they create. If that’s what it takes to get more people to play ball, and someone is willing to sponsor the reward program to enable that, I’m finding it a little hard to be upset about it. But I guess there’s a fine line between influential and insidious.

Think Secret reports that Apple will offer iTunes Mobile in June. Okay, cool. It’s a phone and an iPod mashed up. Not a bad 1.0 for that offering. But that’s not what this post is about. It’s really about the so-called competition: Sprint, Verizon and Cingular are launching competing services, charging “between $2-$3 per song”.

To the operators building these services, I have one question.

Are you fucking nuts?

How stupid do you have to be to think this is an acceptable value proposition to the listener? Let’s do the math: a CD at Sam Goody costs $19. (It’s more like $12-15 at places that don’t try to screw you.) It contains a minimum of eight songs, and that disc is your property until the pits fall off of the CD. The iTunes Music Store is only a viable concern because at $10 per album, it offers a discount off the cost of a physical CD to counterbalance what is lost: physical ownership, portability and permanency.

Let’s apply these properties to the operators’ offering: for the privilege of downloading DRMed content, which is presumably only playable on your phone, and which will disappear once you change carriers, they want to charge you more than you’d pay for a DRM-free, higher-quality, utterly flexible CD. Never mind how frustrating I would imagine a pre-3G interface on tens or hundreds of thousands of tracks will be. Yes, I know that the cost of the DRM is high. But as the saying goes, your failed business model is not my problem.

The part that kills me about this is that the operators’ offering is going to be such a spectacular failure that they will walk away shaking their heads and saying that the market wasn’t ready for them. Then they’ll spend 5 years holding off on giving us higher bandwidth and more advanced services, because they won’t be able to figure out anything to sell over that connection besides ringtones. I have no confidence that they will eventually realize the strategic error in their thinking, and as a result engage in a market conversation. It seems that’s not what a mobile provider does.

The carriers would have been wise to adopt the Napster To Go model. Add $15 a month to your mobile bill (a great deal for operators who wish for $100 per subscriber per month), and have access to all the music in the Napster catalogue. Even better from Napster’s perspective, the devices have limited storage space relative to desktop machines, and limited bandwidth with which to suck down files. That beats the hell out of $3 for a single download. The way I see it, if I’m going to pay money for music that I’m not going to actually own, I want to not-own all of it.

Sometimes, you just have to look at the numbers. A debate on the BBC News site pits the chairman of the British Phonographic Institute against an industry critic on the subject of extending the UK’s 50-year copyright on sound recordings. What’s interesting isn’t necessarily the arguments made, as anyone familiar will have heard them already, but the reader commentary.

Out of 47 comments on the debate, four favored the record labels’ position in some way. The rest ranged from good-natured, subtle British cynicism to pure vitriol at what is perceived as greed on the part of the recording industry. That’s almost 11 to 1 against extending copyright. And sure, that’s a self-selecting sample, but I’m not sure that’s really that far off. Who would defend an extended copyright lifetime, aside from content owners? There is no societal benefit to that position that I can think of — not even a trickle-down effect to other rightsholders.

Which leads to the next question: why aren’t more people up in arms over this? I have to guess that it’s that very few people are aware of the existence of the public domain, which is unfortunate, since we in the US haven’t seen works pass into the public domain in almost 80 years. Or it could be that there hasn’t been much thought about who makes the money from music licensing, and how. I think that’s quite likely. I also believe that this debate is going to keep progressing in both the US and Europe, and that for every ten people who are introduced to it, nine are going to come to our side. Eventually, if that holds, we’ll get to the tipping point where the voting constituencies of policymakers get more attention than the lobbyists pushing this kind of stuff.

If a consortium writes a digital rights management spec and nobody uses it, does it prevent you from making a noise? It looks like the members of the Open Mobile Alliance are about to find out. Mobile companies are balking at a per-device fee that they claim is too high, and a per-transaction fee that operators say is just plain not going to work. As a result, they may just ignore OMA’s spec altogether.

To me, there’s something very, very funny about this. Mobile operators may not be able to offer copyright holders the chance to lock down their content because it’s too expensive to license the upstream technology they need to do it. Maybe the fact that the mobile platform is more or less a closed system to begin with, and despite all that, the copyright holders have been demanding this is the part that makes me giggle.

Update (13 April): Looks like somebody blinked. The licensing scheme is now 65 cents per handset and 25 cents per subscriber per year, with no per-transaction fee. That’s one less nail in the coffin of unlimited music plans over the mobile network.

Eric Steuer of Wired moderated a panel on the rise of remix culture. Mashup artist DJ Reset started off by talking about the work he’s been doing, and the kind of feedback he’s received from the original creators. Most have been very positive, including Lynyrd Skynyrd. He’s also working with U2. But it’s not all wine and roses: AC/DC has shut down one of his mashups.

Glenn Otis Brown of Creative Commons talks about some of the legal history. One decision stated, essentially, “unless you have a license, do not sample.” Another case, in which the Beastie Boys’ “Pass the Mic” was the subject of a lawsuit by the publisher, over three notes that had already been cleared by the label. That one went the other way. Still, labels are “gunshy” over samples, and some won’t touch them at all. DJ Reset says that the first thing out of a label’s mouth is, “is there a sample on (the track)?” And if so, they often try to get an artist to take it out.

Interlude: a mashup of Gene Kelly in Singin’ in the Rain, where both the music and his choreography are remixed.

What are the prospects for this genre? Reset says it depends on the music. If it’s good quality music, people will keep it going. If it’s marginal, this could be a flash in the pan.

Reset mentions a “poor me, somebody likes my music” attitude among artists who see a mix of their music made available, and see only the imaginary dollars they lost.

Another mashup: “This Place Sucks“, where the Superfriends act out scenes from Office Space.

Brown mentions the merger of the real and imaginary, documentary and narrative, etc. He mentions the real and acted-out Larry David in “Curb Your Enthusiasm” as an example. Then he discusses the Creative Commons Sampling license which was the basis for the Wired CD It allows sharing, remixing, etc., for the tracks. They worked with Negativland, who insisted that advertising be excluded from the new license. Eric Steuer describes the process of the CD as being anywhere from no response at all, like it was a concept so foreign that it wasn’t worth a response, to some serious questions, to some real collaboration. Bands like Le Tigre, Dan the Automator and Cornelius, who already work with samples, got it right away.

CC Mixter was mentioned, along with the Fine Art of Sampling contest. The remix album is now available (and featured in Staccato 13).

Question: A documentary filmmaker wants to open-source his interviews. He wanted to first release all of the transcripts, then when the DVD is released, also release the audio and video. Wants to know how to collect micropayments for the interviews. Brown says that it’s good to provide some direction for consumers. He mentions “Outfoxed”, a film which did release its source material. And also Magnatune, the netlabel that offers clear commercial licensing terms.

Reset says EMI and Apple Records put a premium on the brand over the content. Bands, however, often aren’t opposed to the concept. He has one freely-available track featuring Paul McCartney (with permission). But sometimes, the music is just something the artists don’t like, and they don’t want to be associated with it.

Question: Someone puts a Sampling Plus-licensed track in a movie, and wants to use that song in the ad for the movie. Is that a problem? Brown says that appears to be a hole in the license. But it probably wouldn’t be a problem to remedy.

Question: What if I wanted to remix various sorts of text from political views? Brown says that’s essentially what syndication software does. If you’re still linking back to the original source, that should be fine. But how would it be to reprint something from Wired in another magazine? That would certainly be problematic, says Steuer. Brown adds that it will get harder and harder as time goes on to find out what is the original source of certain items. William Gibson says in Pattern Recognition that it will take archaeologists in the future to find the actual origin of some given work.

A few days ago, I wrote a blog entry on podcasting, music and the law, which has served nobly as a big wet blanket over the smouldering hopes and dreams of many a late-night music podcaster. Consider this Part 2, where I decide to do something about it.

The feedback I have gotten from podcasters and bloggers alike upon reading of the intricacies of music licensing has been: “dude, that sucks.” My response has been: “yah, totally.” Clearly, more discussion is needed, if for no other reason than to stop talking like surfers to one another.

It is with that goal in mind that I have created the Music Lovers Union. I want to attract artists, podcasters, broadcasters, and others interested in, to use a very non-surfer term, disintermediating the transaction between listener and musician. I want to talk about Creative Commons music, and ways to facilitate commercial licensing of that music. I want to help build a viable model for artists to share their love of music with the world, without fear of heavy debt and/or indentured servitude.

I have started a wiki and a mailing list, because it makes my life easier to formulate these things collaboratively. Please sign up if you want to take part.

Once I have made my new server Plone-friendly, there will be a more traditional community site, with downloads and links and chats and contests where people who are infinitely more talented than me battle for the listeners’ affections. There’s more, but it’s going to have to start with that. I promise to talk more about it in the next Staccato, which I keep telling myself I’m going to record before the weekend, because if I don’t, it ain’t happening until after Boston.

(I already have a logo drawn up, but I’m a little too busy to give it the attention it deserves in Illustrator, so, like, suffer, or something. It’ll be worth it when I print up the t-shirts. )